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The Peoples Declaration On Restoring The Powers Of The European Court Of Human Rights

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The European Court of Human Rights is the people‟s institution of last resort when their rights and liberties have been violated by State Parties. Any change in its structure and operation must …

The European Court of Human Rights is the people‟s institution of last resort when their rights and liberties have been violated by State Parties. Any change in its structure and operation must therefore be sanctioned by the people by referendum. The following is the people‟s view of how the Court must be reformed so it can remain effective in the face of an onslaught of applications, an increase that gives clear indication of deteriorating conditions in the social and legal fabric of Europe.

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  • 1. THE PEOPLE’S DECLARATION ON RESTORING THE POWERS OF THE EUROPEAN COURT OF HUMAN RIGHTS (A gift from those who have nothing to give but themselves and of themselves.) Drafted by Kevin Galalae At 28 days of hunger strike, on May 9, in the city of Strasbourg, France.From left to right: Francisco da Silva (Portugal), Kevin Galalae (Canada), Emilia Borková (Slovakia), GheorgheFrunză (Romania), Andrzej Jańczyński (in the wheelchair, Poland), Didier Jacque Dulepa-Gilles (France),Ismaili Nazlija (Germany). 1
  • 2. The European Court of Human Rights is the people‟s institution of last resort when theirrights and liberties have been violated by State Parties. Any change in its structure andoperation must therefore be sanctioned by the people by referendum. The following is thepeople‟s view of how the Court must be reformed so it can remain effective in the face of anonslaught of applications, an increase that gives clear indication of deteriorating conditions inthe social and legal fabric of Europe.Any new measures of reform must in the people‟s view rest on the following fundamentalprinciples, principles on which the Court was established and from which it cannot deviate: I. That the responsibility for bearing the costs of the Court and addressing its overburdened system must fall not on those who suffer but on those who cause the suffering. II. That the Court‟s accessibility to individuals is of paramount importance since human suffering must take precedence over the political interests and bruised reputations of State Parties that routinely violate the European Convention and wish to limit access to the Court. III. That the Court‟s primary function must remain the protection of individuals from abusive State Parties and not the protection of State Parties from individuals who abuse or misunderstand the Convention.In the measures adopted by the Committee of Ministers of the Council of Europe through theIzmir Declaration (26-27 April 2011), the people‟s principles of what the Court mustrepresent and was indeed meant to represent since its inception have been turned upsidedown. This is an attack on the people‟s Court and an affront to justice committed byrepresentatives of select State Parties to usurp the people‟s court of last resort. It cannot betolerated, as it was executed without the consultation and approval of the people, indeedwithout even parliamentary oversight. * HOW THE CHICKEN COOP WAS ROBBEDThis hijacking of the Court‟s fate and powers by the Committee of Ministers, who areappointed by the executive branches of their respective governments – governments of StateParties that want to erode the powers and jurisdiction of the Court – is a process that started atInterlaken. 2
  • 3. That much was observed by Raporteur Bemelmans-Videc, who was charged to report on the“Effective implementation of the European Convention on Human Rights: the Interlakenprocess”1, in April 2010: “I found it a pity that no opportunity was provided for a genuine discussion or exchange of views on subjects of importance; the texts prepared ahead of time were simply adopted by consensus.”Ms. Bemelmans-Videc, also noted with dismay the absence of the Parliamentary Assemblyfrom the Interlaken process and thus the absence of a democratic process in deciding how bestto reform the European Court. The Assembly, like the Committee of Ministers, is responsible for protecting the values of the Council of Europe and in ensuring compliance, by member states, of ECHR standards. It was the Assembly which, despite initial reluctance of the Committee of Ministers, was at the origin of the Convention as we know it today, and it is the Assembly which provides „democratic legitimacy‟ to the judges on the Court whom it elects (Article 22, ECHR). Hence, the somewhat puzzling feature of the documents adopted in Interlaken which make no mention of the Assembly and contain scarcely a word on the role of national parliaments. The Assembly must therefore reflect upon how best the „parliamentary dimension‟ should be fed into the Interlaken process.A year earlier, in 2009, the former Chairperson of the Legal Affairs Committee, Ms. Däubler-Gmelin, bemoaned the fact that the Organization‟s executive, instead of having “the courageto „bite the bullet‟ to confront the real human rights issues and problems facing memberstates and the Council of Europe” resorted to the politically expedient method of restrictingaccess to the Court by tightening the qualifications criteria and thus making the Court harderto reach by individuals who are victims of state abuse.2That the offenders, i.e. State Parties, are being allowed to reform the Court without the inputand approval of those offended, i.e. the people, is tantamount to allowing a pedophile dictatethe rules by which he is to be tried and the eligibility criteria for his victims to qualify forjustice. But this should come as no surprise when decisions are made by State Parties only –the pedophiles in my metaphor – while the people have no seat and no say whatsoever at thedecision-making table.Not surprisingly, the Izmir Declaration‟s sole achievement is to trap victims of State abusebetween justice denied in the national courts and justice unreachable at the European Court.Instead of 9 out of 10 applications being refused for failing to meet the eligibility criteriaadopted at Interlacken, there will now be 999 out of 1000 screened out by the more stringentrules set in Izmir.1 Full report available at: http://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12221.pdf.2 See “3rd Annual Report of the Committee of Ministers for 2009 on the Supervision of the Execution ofJudgments of the European Court of Human Rights” at:http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2009_en.pdf. 3
  • 4. How did this come to be and who is behind this autocratic hijacking of a previouslydemocratic decision-making process? Let us follow the smoke to find the fire.The Izmir Conference was organized within the framework of the Turkish Chairmanship ofthe Committee of Ministers of the Council of Europe, so the first instinct is to blame theTurks. It is easy to suspect them since they have the worst human rights record and areconstantly upbraided by the European Court for failing to uphold even the most basic humanrights.If Turkey is the mastermind then it has given Europe a curse that will haunt it for generationsand will put European justice at par with Turkish justice, and we all know what that lookslike. The European Court‟s statistics show that in 2007 Turkey ranked easily as the worstoffender. 319 judgments finding at least one violation were issued against Ankara, 8 of whichinvolved “torture” and 23 “inhuman or degrading treatment”. Russia was a distant secondwith 175 violations. From 2007 until today, Turkey has remained a top violator vying for firstplace with Russia and without equal in the gravity of its crimes.But is Turkey the brain behind the annihilation of the European Court of Human Rights?Not by a mile. Turkey lacks the legal know-how and the sophistication to conceive andexecute such an audacious and Machiavellian destruction plan. The Turkish government, touse another metaphor, could not tie its own shoes when it comes to policy making and legalmaneuverings on the international arena. It is therefore wise to conclude that AhmetDavutoglu, the Chairman of the Committee of Ministers of the Council of Europe andMinister of Foreign Affairs of Turkey, is merely the bearer of someone else‟s plan.But whose plan? Here is the answer: “At its 1080th meeting on 24 and 26 March 2010, the Ministers‟ Deputies agreed to set up an open-ended ad hoc working party (GT-SUIVI. Interlaken), to be chaired by the United Kingdom Ambassador, in order to steer the follow-up process to the Interlaken Declaration as a whole. When so doing, the Deputies also took into account a document prepared by the Secretary General (document CM (2010) 31) on the modalities of implementation of the Declaration and Action Plan. It is this working party, which had its first meeting on 13 April, that is expected to propose an initial series of draft decisions for adoption at the ministerial session on 11 May. The Secretary General‟s document, a “road map” that is to be updated regularly, will permit the Committee of Ministers, through this newly created working party, to steer the process. Relevant activities of civil society organisations will be appended to future updates.”33 See “Effective implementation of the European Convention on Human Rights: the Interlaken process”, pp. 4 & 5, available at: http://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12221.pdf. See also https://wcd.coe.int/wcd/ViewDoc.jsp?id=1605757&Site. 4
  • 5. So the mandate to steer, under their exclusive authority, the ad hoc working party of theCommittee of Ministers‟ Deputies to follow up the reform process of the European Court wasgiven by none other than the Secretary General of the Council of Europe, Mr. ThorbjørnJagland.4 More than this, he handed the chairmanship of the ad hoc working party to theUnited Kingdom Ambassador, Ms. Eleanor Fuller. And that is how the Brits have putthemselves in charge of shaping European policy once again.Not only are they responsible for the UN Resolution 1624 (2005), which robbed the worldand the UK of democracy under the pretext of countering radicalization, and for the Europe-wide adoption of secret programs of surveillance and censorship of students in universitiesthrough the back door of the Stockholm Programme, which robbed the entire continent ofEurope of the rule of law, media freedom and an independent civil society; now they are alsoin charge of annihilating the powers and jurisdiction of the European Court so as to be able tocover the tracks of their egregious violations of human rights at home and throughout theworld.5The puppet assembly of the Ministers‟ Deputies, manipulated by the higher authority of theBritish Ambassador who chaired their meetings, has propose a series of draft decisions thatwere cheered on at Izmir and are to be fully adopted at the ministerial session on 11 May, nextweek, in Istanbul; draft decisions that were undoubtedly dictated by the Brits who have thelegislative and legal sophistication to give the unsophisticated and abusive Eastern Europeangovernments what they most want, namely a way to get the European Court off their backs sothey can continue to treat their citizens with utter disregard for the human rights enshrined inthe European Convention.So what we have here is a coordinated attack on the European Court by the following actors:the Secretary General of the European Council, Mr. Thorbjørn Jagland; the BritishGovernment and its Ambassador at the European Council, Ms. Eleanor Fuller; and theTurkish Government, which has the Chairmanship of the Committee of Ministers at theCouncil of Europe and is represented by Ahmet Davutoglu, the Minister of Foreign Affairs ofTurkey.With these forces aligned for a common purpose (i.e. the annihilation of the European Court‟spowers, jurisdiction and effectiveness) it was very easy to get the disgruntled nations of theformer Eastern Block, who are the main clients of the European Court, because they have notabandoned the totalitarian habits ingrained in their political and legal systems duringcommunism, to vote for the reform package the Brits designed for this purpose, had the4 No wonder he refuses to allow the Council‟s pres office to utter a word about my hunger strike here inStrasbourg!5 The combined effect of Britain‟s doings show that the UK is bent on destroying social democracy to reshapeEurope in its own image, a Shangri-La for elites whose hereditary rights will destroy the principle of equalitybetween men, will reduce the populace to the inferior status of subjects and will throw Europe back to the darkages of monarchy. 5
  • 6. Deputy Ministers rubberstamp during the ad hoc working party meetings, and the Committeeof Ministers adopt through the Izmir Declaration.That is how the Brits orchestrated the destruction of the European Court from within theCouncil of Europe, a goal they announced unabashedly in the British media once theEuropean Court slapped Britain for depriving its prisoners of the right to vote6 and in advanceof taking over the Council of Europe‟s Chairmanship7Now that we have seen how the European Court was annihilated by an unholy coalition ofautocrats, imperialists and corrupt EU officials, let us take a look at how the measures put inplace have deprived the Court of power and jurisdiction. * THE COUNCIL OF EUROPE‟S REFORM OF THE EUROPEAN COURT IS A SMOKESCREAN FOR ANNIHILATING ITS POWERS AND JURISDICTIONAs a result of Izmir and Interlaken, the number of applicants to the European Court willcontinue to increase, though hardly anyone will get through the screening process, and thenature of the abuse described by victims will be worse than ever because these individualswill have been victimized longer and by more courts than ever before.To add insult to injury, the individuals who have gone through years of abuse by their nationalcourts will arrive at the European Court destitute and desperate only to find that this too is justanother court where justice is denied and the law is but a travesty. Swimming across atreacherous legal ocean, almost drowning, the victims of state abuse arrive in Strasbourg onlyto find that the oar of European justice is used to push them under rather than help them outonto the land and safety.The Izmir Declaration stresses the principle of subsidiarity as the primary means by which tolimit the cases accepted by the Court and thus reduce its workload, but in so doing it makesthe Court inaccessible to 99.9% of the population8. Subsidiarity means that the EuropeanCourt must apply fully and strictly the admissibility criteria set out in the Convention, inparticular the requirement that applicants exhaust all domestic remedies.Applications are eliminated because they do not fulfill artificial criteria and not because theyare devoid of substance or do not represent legitimate complaints. This perversion of justiceis scandalous and merits the most severe opprobrium.6 See http://www.thetrumpet.com/?q=8185.6831.0.0.7 See http://www.euronews.net/2011/02/21/britain-promises-european-human-rights-debate/ andhttp://www.guardian.co.uk/law/2011/may/06/david-cameron-european-law-allergy.8 Next week, I will issue a word by word translation and interpretation of the Izmir Declaration‟s text todemonstrate how nearly all of its measures undermine the power, jurisdiction and effectiveness of the Court. 6
  • 7. If the reform measures of the Izmir Declaration adopted by the Committee of Ministers of theCouncil of Europe are implemented, the European Court will cease to function as it wasintended because it will no longer be accessible to anyone other than the wealthy and the wellconnected.Who has the resilience, the time and the means to waste on the futile endeavor of goingthrough three or four judicial courts at the national level only to achieve nothing? It is a well-known fact that 9 out of the 47 Member States that are members of the Council of Europehave major structural and/or systemic problems and are incapable of dispensing justicethrough their courts.9It is a well-kept secret that the counter-radicalization strategy has polluted the legalenvironment and made respect for human rights but a memory in nations where the rule oflaw used to mean something. The UK is the primary example of such decline in standards.The statistics compiled by the European Court bear out this fact more clearly than any articleon the subject. They show that in the three years (i.e. from 2007 to 2010) since Britainintroduced its counter-radicalization strategy as the Prevent strand of its greater counter-terrorism legislation, the number of cases pending against the UK jumped from 1,363 in 2007to 3,172 in 2010. In other words, the UK nearly tripled its human rights violations against itscitizens.The rights that are being violated by the UK also fully reveal that the damage done to its legaland human rights environment is the direct result of a counter-radicalization agenda carriedout through covert and discriminatory programs of surveillance, censorship and repression,programs that fail to respect expressional rights and freedom of conscience even on thesacrosanct ground of the nation‟s universities, where these rights are to be promoted anddefended by law to a far greater extent than anywhere else in society. The rights that arebeing violated are: prohibition of discrimination, right to respect for privacy and family life,right to liberty and security, right to an effective remedy, right to a fair trial, and lack ofeffective investigation.Let us take a look at how the Court should have been reformed in order to stay true to itsoriginal principles described on the first page of this paper.A good faith reform of the European Court would look like this. Bear in mind that I havedrafted this entire document and just three days and that I have no legal training whatsoeverand no prior knowledge of the Interlaken and Izmir reform packages or the inner workings ofthe Council of Europe. But this is not rocket science and any reasonably intelligent man orwoman could come up with a similarly decent plan.9 Read “States with major structural/systemic problems before the European Court of Human Rights: statistics”,available at: http://assembly.coe.int/CommitteeDocs/2011/ajinfdoc05%202011rev_EN.pdf. The states inquestion are: Bulgaria, Greece, Italy, Moldova, Poland, Romania, the Russian Federation, Turkey and Ukraine. 7
  • 8. * THE PEOPLE‟S PLAN FOR REFORMING THE PEOPLE‟S COURT OF LAST RESORTPRINCIPLE I: The bad must payMeasures meant to ensure that the responsibility for bearing the costs of the Court andaddressing its overburdened system must fall not on those who suffer but on those who causethe suffering: 1. Lawyers, attorneys and judges who are found to have acted in bad faith, contrary to the interests of justice and who have miscarried justice must be forced to compensate the victims from their own pockets, disciplined or disbarred, depending on the grievousness of their offence. 2. Those who arrive at the Court‟s doors destitute and desperate must be provided with accommodation and food and have their applications fast-tracked. The cost must be born by the State Party accused of violating the victim‟s rights. 3. 10% should be added to every compensation awarded to victims by the Court as penalty for repeat offenders to cover the operational costs of the Court caused by State Parties whose judiciaries have failed to apply the letter and spirit of the European Convention. This ensures that the worst offenders pay the lion‟s share of the Court‟s costs. The State Party has the option of recuperating those costs from the complainant if the Court rules in its favor. Conversely, if the Court rules in favor of the complainant, the State Party has the option of recuperating its costs from the judge or judges who have miscarried justice.PRINCIPLE 2: The door stays openMeasures meant to ensure that the Court‟s accessibility to individuals is of paramountimportance since human suffering must take precedence over the political interests andbruised reputations of State Parties that routinely violate the European Convention and wishto limit access to the Court: 4. Applicants from countries known to have structural and/or systemic problems or from countries that apply covert methods of surveillance, censorship and oppression which deny citizens knowledge of the original source of their abuse must be exempt from the strict application of the eligibility criteria since the risk involved in sending them back to their country‟s legal systems that have been corrupted to miscarry justice or co- opted to create legal dead-ends and to ignore violations is too great and thus unconscionable. 8
  • 9. 5. Applicants from countries that have refused to or have delayed the full implementation of one or more earlier judgments by the Court must be exempt from the strict application of the eligibility criteria. This will act as leverage against State Parties that are repeat offenders and show little intention of honestly following the European Convention or implementing the Court‟s rulings. 6. Humanitarian concerns must supersede legal and technical considerations. This means that judges charged with assessing the legitimacy of an application must have the widest possible latitude to decide if a case merits the Court‟s attention.PRINCIPLE 3: People must come firstMeasures meant to ensure that the Court‟s primary function must remain the protection ofindividuals from abusive State Parties and not the protection of State Parties from individualswho abuse or misunderstand the Convention: 7. Governments of State Parties that change or corrupt the law to serve their own interests rather than adhere to the universal principles espoused by the European Convention and international law must be stripped of diplomatic immunity and prosecuted accordingly by the International Criminal Court at The Hague. 8. Periodic blanket amnesties must be used to resolve the plight of individuals who endure hardships that are uncommon while protesting and pleading with the Court in person. It is not without reason that the Convention rights are called „human‟ rights and not „legal‟ rights. The human aspect of the law must prevail over the legal. To this end, broad use of friendly settlements where State Parties are encouraged to be generous and humane towards its people, whether their complaints are strictly rooted in law or not, provide the most civilized and cost-effective manner. 9. As a matter of policy, the Assembly must suspend “the voting rights of a national delegation where the national parliament does not seriously exercise parliamentary control over the executive in cases of non-implementation of Strasbourg Court judgments”.10PRINCIPLE 4: No justice without hopeIn addition to the above nine measures, I propose a tenth measure, the human effect measure.It has been my experience that the European Court conducts itself in a most insensitive and10 This measure was proposed by Mr. Christos Pourgourides, the Chairperson and rapporteur of the Legal AffairsCommittee on the implementation of judgments of the Court. 9
  • 10. rude manner with the people who come to it for justice and who are demoralized, shunned,and desperate. At no time does the Court go through the trouble of granting applicants face-to-face interviews or of informing them periodically of the status of their applications. At notime do the Court‟s employees condescend to make use of their good manners to offerencouragement, advice or a simple smile to those who day after day wait and hope and beg atthe Court‟s fortified gates. At no time, is protocol eased to account for the fact that humanbeings have feelings and are guided by emotions and that a word of kindness goes a long wayin sustaining those who have long surpassed their limits.Measure meant to ensure that justice has a human face: 10. The Court, its employees and its protocols must be mindful of and sensitive to the human suffering that applicants have endured, the hope that the Court represents, and of the devastating effect negative closure can have on those who believe with every fiber of their being to have been wronged.In addition to addressing the Court‟s budget problems and overburdened system, these tensimple measures will also effectively and fairly address four other major problems that haveplagued the Court for the past decade: they will provide a powerful incentive to remedy thestructural and systemic problems of states that are repeat offenders; they will lead to the fulland expeditious compliance with the judgments of the Court by pressure from within the legalsystems of nations that are malfunctioning due to corruption, incompetence or politicalinterference; they will strengthen implementation of Convention rights at the national level,and they will give justice a human face and thus resurrect the dismal record and reputation ofthe legal system.I am not a jurist but I can guarantee you that the people‟s reform plan would win by a marginof ten to one in a referendum. * CANDLE LIGHT VIGIL UNTIL THE COURT IS RESURRECTEDThis is our court to defend not theirs to destroy. And defend it we will. We, the injured andthe downtrodden, pledge to hold a candle light vigil every evening from 9 to 10 PM until theCourt is resurrected. The only way to bring it back to life and to the principles on which itwas founded is to fully adopt the People‟s Declaration.We invite the Court‟s employees and judges, as well as members of the public, to join us. 10